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Jun 03, 2023

Everything You Need to Know about Consent Decrees

This fall, a federal judge in Manhattan will considerwhether to turn over control of Rikers Island from the city government to a court-appointed receiver who would be responsible for improving jail

This fall, a federal judge in Manhattan will considerwhether to turn over control of Rikers Island from the city government to a court-appointed receiver who would be responsible for improving jail conditions. The decision comes amid continuing civil rights violations and systemic dysfunction. Since 2015, Rikers has been operatingunder a "consent decree,” which empowersthe judge to enforce a negotiated plan to improve conditions inside the jail complex. Twenty-seven people have diedin city jails under the current mayoral administration—eight this year alone.

Rikers is far from the only part of the criminal legal system under federal scrutiny. At any given time, some of the largest police departments and jail systems in the United States are operating under consent decrees. Jurisdictions under these agreements are required to change their unlawful practices, which in some cases have led to discriminationor death, with progress enforcedby a federal court and often tracked by a court-appointed monitor. If a jurisdiction repeatedly fails to comply with the requirements of the agreement, it can be held in contempt of court and, in extreme cases of noncompliance, the court could even decide to turn over control of the department to another party.

There are nearly 30 active consent decrees involving law enforcement and jail systems. Cities like Chicago, New Orleans, Seattle, and Los Angeles have all had jail systems or police departments operating under this kind of federal oversight due to investigations into unlawful patterns. But what does that mean in practice? Here’s how consent decrees work, and how they impact the criminal legal system.

A consent decree can be thought of as a legally binding performance improvement plan. It is a court-enforced settlement, agreed to by all parties and approved by a court.

Consent decrees are legal tools used in everythingfrom antitrust cases to environmental regulation. When one is used to compel a jurisdiction to reform its jail system or police department, it typically arisesfrom a Department of Justice (DOJ) investigation into a pattern of misconduct. The consent decree, issued by a court, follows a DOJ lawsuit against the jurisdiction that operates the department in question and compels the jurisdiction to comply with the agreed-upon terms.

Consent decrees can follow many paths. According to people who have worked extensively with them who spoke with Vera, the pathof a typical federal consent decree involving a jail system or police department is:

The community impacted by a department’s practices calls for an investigation.

The DOJ opens an investigation into an unjust practice or pattern. (Other agencies or non-governmental entities can also enter consent decree judgements with cities, but consent decrees with federal oversight often have roots in DOJ investigations.)

Once the investigation is complete, the parties involved can negotiate a settlement—sometimes before a lawsuit is filed, and sometimes after. Either way, a lawsuit must be filed to bring the issue before the court, which ultimately issues the consent decree based on this settlement.

The court approves the agreement and typically appoints a federal monitor—a single person—to track progress on the plan and provide regular reports on the department’s performance against the agreed-upon metrics. The federal monitor employs a team that works with them, many of whom are subject matter experts, and sometimes includes people directly affected by the unlawful practices.

The monitor reportstheir findings to the court. As the department implements changes, DOJ remains engaged throughout the process, approving policies, training programs, and implementation plans that pertain to the consent decree.

The consent decree may also require the local government to allocate resources that allow the department to meet the benchmarks.

If the monitor reports that the department under investigation persistently fails to meet the benchmarks laid out in the decree, they may recommendthat the court take action. However, the court alone has authority to act on that recommendation. The court can hold the jurisdiction in contempt and can awarddamages or impose sanctions, like financial penalties, against a jurisdiction that is failing to comply. In these cases, damages are often forward-looking, meaning a jurisdiction is penalized a certain amount of money for each day it is out of compliance with the consent decree.

The New York City DOC case illustrates this dynamic: the federal monitor has issued a series of increasingly frustrated reports about DOC’s lack of improvement following another year of deaths in city jails. This summer, he calledon the court to hold DOC in contempt. As of writing, the court has decidedto hear arguments around turning control of Rikers over to a federally-appointed receiver.

A consent decree can last for years—sometimes more than a decade—as the department works to improve conditions and practices. The court has full discretion to decidewhen a department has proven its full compliance with the agreement’s requirements and end the consent decree.

The use of consent decrees around policing originatedin the 1994 Crime Bill—a law that fueledmass incarceration and expandedracial disparities in our legal system. Alongside its many punitive provisions, the law included a small handful of law enforcement accountability measures, such as authorizingDOJ to conduct “pattern-or-practice” investigations into pervasive misconduct. Its inclusion was drivenin part by the investigation of the independent commission into the beating of Rodney King by Los Angeles Police Department officers, which found that that incident was part of a broader pattern of departmental failure. Congress passedthe Civil Rights of Institutionalized Persons Act (CRIPA) in 1980, which guarantees protections for incarcerated people and is used to counter patterns or practices of civil rights violations in jails and prisons. Though some consent decrees involving jails predate CRIPA, it is the basis of many investigations that lead to consent decrees involving jails today.

Consent decrees are intensely political. Because they hold police departments and jail systems accountable, their use depends on who controls the White House—and, by extension, the DOJ. The Obama administration filed 14 consent decrees, while the Trump administration took steps to limit their use, arguing the process hurt morale and led to violent crime. The Biden administration lifted these curbs shortly after taking office.

Consent decrees, like any other legal tool, are only as effective as the people wielding them, and there are limits to their power. Some critics pointto the fact that true progress can only be achieved by reducing reliance on police or jails; consent decrees instead focus on reforms that maintain the scope of the criminal legal system. Others saythe consent decree process itself is expensive and time-consuming.

However, in the absence of structural accountability for persistent racial discrimination and unlawful use of force by law enforcement, nor for in-custody deaths and inhumane conditions in jails, consent decrees can help reckon with cultures of impunity. They are a tool that has been used to mitigate the harms of mass incarceration and limit the abuses of departments that otherwise lack meaningful checks.

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